1984 PLP 123 (SCMR)

MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑Leave to appeal has been sought from judgment dated 23‑2‑1983; whereby the petitioner, a prosecu trix in a Zina‑bil‑jabr liable to Tazir case, was herself ordered to be tried for Zina liable to Tazir offence. The accused/convict in the said original case was acquitted by the same judgment on a finding that the petitioner had not implicated (rather exonerated him) in her previous statements while she accused him of Zina bil jabr in her deposition during the trial. Two questions arise in this case: One whether the petitioner has not been ordered to be tried for the offence of Qazf liable to Tazir under section 10 of the Offence of Qazf (Enforcement of Hadd) Ordinance VIII of 1979, and that the provision mentioned in the impugned judgment, that is section 10(2) of the Ordinance should not be treated as the earlier mentioned provision. And two, whether she could be ordered to be tried for any of the said provisions. It is inter alia contended that the acquittal of the accused in the main case took place on account of the contradictory statements made by the petitioner during the investigation and at the trial; which would lead to the assumption that one of them must be untrue; accordingly, the due benefit was extended to the said accused which resulted in his acquittal. Neverthe less, it is further contended, the said acquittal, has to be treated in law, as one on extension of the benefit of doubt; because, it remains doubtful as to which of the two contradictory statements is true. The argument proceeds on the basis of the law laid down by this Court in Sher Hassan v. The State (IPLD1959SC480), to the effect that decision on the extension of such a benefit, in a criminal case rests on the assumption that there is reasonable possibility to believe that either of the two statements might be correct. And the one more beneficial to the accused has to be adopted. But that does not mean that the other is conclusively proved to be false unless proved so in properly constituted proceedings. Therefore the petitioner herself could not be tried on the basis of the so‑called contradictory statements till she is found guilty of Qazf perjury regarding the one in which she implicated the accused. The contention about Qazf on the other hand is that she could not be tried under the relevant law without a proper complaint by a specified person. Other questions in addition to these, of general importance also arise in this case. We accordingly, while condoning the delay subject to all exceptions, grant leave to appeal. The proceedings shall remain stayed meanwhile. The petitioner is directed to apply to the Federal Shariat Court for clarification whether the offence mentioned in the impugned judgment, due to a typing error, was not section 10 of the Qazf Ordinance. M. Z M. Leave granted.